Allowed

Union of India v. Revindran Nair.B.

Kerala HC21 Oct 2020OP (CAT)/36/2019

Case brief

AI extract

What is this about?

The Court allowed an original petition challenging a Central Administrative Tribunal order granting pension benefits. The High Court held the Tribunal erred in applying a repealed Rule 48B to the petitioner, excluded apprenticeship time as qualifying service under Rule 16, and deemed resignation a valid ground for denying the pension due to insufficient service.

What did the court decide?

The original petition was allowed, and the order of the Central Administrative Tribunal in O.A. 694/2017 (dated 30-10-2018) was set aside and dismissed.

Union of India Vs Revindran Nair.B. — Pension and Retirement Benefits | Kerala HC (2020)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

¶4

¶5

THE HONOURABLE MR. JUSTICE GOPINATH P.

¶6

WEDNESDAY, THE 21ST DAY OF OCTOBER 2020 / 29TH ASWINA, 1942

¶7

OP (CAT).No.36 OF 2019

¶8

AGAINST THE ORDER IN OA 694/2017 DATED 30-10-2018 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH

¶9

PETITIONERS:

¶10

1 UNION OF INDIA

¶11

REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF DEFENCE, NEW DELHI-110001.

¶12

2 FLAG OFFICER COMMANDING IN CHIEF HEADQUARTERS, WESTERN NAVAL COMMAND, SHAHID BHAGAT SINGH ROAD, MUMBAI-400001.

¶13

3 THE ADMIRAL SUPERINTENDENT, GM(HR) AND PM, NAVAL DOCKYARD, LION GATE, SHAHID BHAGAT SINGH ROAD, MUMBAI-400023.

¶14

BY ADV. SRI.T.V.VINU, CGC

¶15

RESPONDENT:

¶16

REVINDRAN NAIR.B., S/O.RAGHAVEN PILLAI K., FOREMAN (RTD), NAVAL DOCKYARD, LION GATE, SHAHID BHAGAT SINGH ROAD, MUMBAI-400023, RESIDING AT SURAVI, PONNARAM THOTTAM, MAVELIKKARA(PO), KERALA-690101.

¶17

R1 BY ADV. S.PRASANTH (AYYAPPANKAVU) R1 BY ADV. SMT.VARSHA BHASKAR R1 BY ADV. SRI.JYOTHISH D.MONY

¶18

THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 14-10-2020, THE COURT ON 21-10-2020 DELIVERED THE FOLLOWING:

¶19

O.P.(CAT)No.36/2019 2

¶20

JUDGMENT

¶21

Dated this the 21^st day of October 2020

¶22

Gopinath, J

¶23

The Union of India and its officers have filed this Original Petition challenging the order dated 30.10.2018 in O.A.No.694/2017, on the file of the Central Administrative Tribunal, Ernakulam Bench. The applicant before the Tribunal/ the 1^st respondent herein had filed that O.A praying that communications through which he was informed that he was not entitled to a pension under the CCS (Pension) Rules, 1972 (hereinafter referred to as 'Rules' for short) be set aside and for an order directing that he should be granted pensionary benefits by adding his apprenticeship period to his service and further by granting him additional five years weightage in terms of provisions contained in Rule 48B of the Rules. He also sought for a direction that the arrears of pensionary benefits shall be granted to him. The claim was allowed by the Tribunal and the order of the Tribunal is now challenged before us. For the sake of clarity, the documents referred to in this judgment are referred to in the manner they are marked before the Tribunal.

¶24

The applicant was absorbed/appointed as a Mechanic in the Naval Dockyard, Mumbai in April, 1975. For about three years prior to that, he had been an Apprentice in the Dockyard Apprentice School. It is his case that he had earned certain promotions and in the year 1991, he

¶25

O.P.(CAT)No.36/2019 3

¶26

had requested for voluntary retirement taking his service to be 20 years including his apprenticeship period mainly due to certain ‘domestic problems’. According to the applicant, this request was turned down as a result of which he was forced to submit his resignation on 19.01.1992. On 2.6.2016, he filed Annexure-A2 representation before the Admiral Superintendent, Naval Dockyard claiming pension under the Rules, after adding his three years apprenticeship period also to his service of 17 years. His request in Annexure-A2 was rejected by Annexure-A3 letter referring to Rule 16 of the Rules, which clearly provided that the apprenticeship period shall not count towards qualifying service for pension. The applicant, thereafter, addressed yet another representation (A4) referring to certain circulars/letters, which according to him, provided that apprenticeship service after attaining the age of 18 years is to be counted as qualifying service, provided the person in question was 'a paid apprentice' and had been employed against a sanctioned post. The authorities of the Naval Dockyard took up the claim of the applicant with the Western Naval Command through Annexure-A7 letter dated 21.4.2017. On 22.6.2017, a reply was sent to the Naval Dockyard by Western Naval Command reiterating that period of apprenticeship cannot be counted towards qualifying service for pension in terms of Rule 16 of the Rules and further pointing out that on resignation the applicant suffered forfeiture of his past service. That communication is produced along with the Original Application as Annexure-A8. A copy of

¶27

O.P.(CAT)No.36/2019 4

¶28

Annexure-A8 together with a covering letter dated 15.7.2017 was sent to the applicant by the Naval Dockyard. This communication is produced as Annexure-A9 in the Original Application. The applicant, therefore, filed the aforesaid Original Application challenging Annexures-A3, A8 and A9. The respondents entered appearance and filed a reply statement reiterating the rule position and contending that the claim of the applicant cannot be sustained. On a consideration of the matter, the Tribunal held that the applicant was entitled to the benefit of Rule 48B of the Rules despite the fact that the said Rule is no longer in the statute book. The Tribunal found that after extending the benefit of Rule 48B, the applicant will have qualifying service for about 22 years. The Tribunal did not go into the question as to whether the applicant was entitled to count the period of apprenticeship together with the period of his service.

¶29

Sri.T.V.Vinu, the learned CGC appearing for the petitioners would contend that the Tribunal grossly erred in law in finding that the applicant was entitled to the benefit of Rule 48B. He would take us through the text of Rule 48B and submit that the Rule would apply only to persons retiring under Rule 48(1)(a) or Rule 48A or to those compulsorily retired under the provisions of the Fundamental Rules (FR 56) or the provisions of Article 459 of the Civil Service Regulations. He would further submit that the provisions of Rule 16 of the Rules clearly provide that the period of apprenticeship shall not be counted as

¶30

O.P.(CAT)No.36/2019 5

¶31

qualifying service for pension. He would also point out the provisions of Rule 26 of the Rules which provides that resignation entails forfeiture of past service.

¶32

Per contra, Sri.S.Prashant, the learned counsel appearing for the applicant/1^st respondent contends on the strength of Annexure A5 that the period of apprenticeship should be counted as qualifying service of pension and that similar benefit had been extended to several others. He would also submit that the interpretation suggested in respect of Rule 48B is not correct. He places reliance on the judgement of the Supreme Court in M.P Pradhan v. Union of India & ors ; (1990) 2 SCC 539 to contend that the period of apprenticeship can be nothing but service under the Government, in the facts and circumstances of the case. He also places reliance on the judgements of the Delhi High Court in Pawan Vohra v. The Chairman DVB Pension Trust; 2014 (4) SCT 604 (Delhi) & Naresh Kumar & Ors v. BSES Rajdhani Power Ltd. & ors ; 203 (2013) DLT 467 to contend that the benefit of Rule 48B has to be extended to the applicant. He would then submit on the strength of the decisions of the Supreme Court in Shashikala Devi v. Central Bank of India ; (2014) 16 SCC 260 & Asger Ibrahim Amin v. LIC of India; (2016) 13 SCC 797 that the resignation of the applicant should not stand in the way of receiving a pension if it is found that he was entitled to a pension on the date of his resignation. He has also referred to a recent judgement of a division bench of this Court in Kunnath

¶33

O.P.(CAT)No.36/2019 6

¶34

Chandrasekharan v. State Bank of India ; 2019 (5) KHC 34 in support of his contention that resignation must not be held against the applicant if it were to be found that he had the necessary qualifying service for pension.

¶35

We have considered the contentions raised by both sides. Since the Tribunal has decided the matter with reference to Rule 48B we will consider whether the finding of the Tribunal that the provisions of Rule 48B would apply is correct, in law. On reading Rule 48B, we have no hesitation to hold that the Tribunal grossly erred in law in applying that provision in the facts of the present case. Clearly, Rule 48B applies only to persons retiring under Rule 48(1)(a) or Rule 48A or to those compulsorily retired under the provisions of the Fundamental Rules (FR 56) or the provisions of Article 459 of the Civil Service Regulations. The applicant admittedly did not retire either on completion of 30 years qualifying service (Rule 48(1)(a)) or on the completion of 20 years qualifying service (Rule 48A). The applicant also has no case that he was compulsorily retired either under the provisions of the Fundamental Rules or under the provisions of the Civil Service Regulations. Thus, without having to examine the question as to whether the repeal of Rule 48B has any impact on its application to the case of the applicant we have no hesitation whatsoever to hold that the provisions of Rule 48B could not have been pressed into service by the Tribunal to hold that the qualifying service of the applicant would be 22 years.

¶36

O.P.(CAT)No.36/2019 7

¶37

The next question is whether the period of apprenticeship can be treated as qualifying service for pension. Rule 16 clearly says no. M.P Pradhan (supra) on which considerable reliance is placed by the learned counsel for the applicant to contend that the period of apprenticeship must be treated as service was rendered in the context of a different set of rules and in a completely different fact scenario. There is a specific finding in that judgement that the period of apprenticeship cannot be discounted since the records showed that the appellant, in that case, had joined service as a paid apprentice on a substantive permanent basis which, unfortunately, is not the case here. Therefore, the ratio of M.P Pradhan (supra) clearly has no application. When the applicant claims pension in terms of the Rules, he cannot be heard to contend that we should ignore the specific provision in Rule 16 of the Rules and hold that the period of apprenticeship must be treated as qualifying service for pension under the Rules. We, therefore, hold that the applicant was not entitled to count the period of apprenticeship as qualifying service for pension.

¶38

Despite our finding that the applicant is not entitled either to the benefit of Rule 48B or to count the period of apprenticeship as qualifying service we must still examine the question as to the effect of resignation, in the facts of this case. Rule 26 of the Rules state that resignation entails forfeiture of past service. Shashikala Devi (Supra) ; Asger Ibrahim Amin (Supra) & Kunnath Chandrasekharan (Supra) take

¶39

O.P.(CAT)No.36/2019 8

¶40

the view that if a person resigns from service after having the necessary qualifying service for pension, resignation by itself should not be a ground to deny pension on the ground that resignation entails forfeiture of past service. This is sadly not the situation in this case. The applicant resigned at the time when he did not have the necessary qualifying service for pension under the Rules. Having held that the applicant was not entitled to either to the benefit of Rule 48B or to count the period of apprenticeship as qualifying service we cannot apply the ratio of the decisions referred to above to hold that the fact of resignation may be ignored to grant a pension under the Rules to the applicant.

¶41

We, therefore, allow this original petition and set aside the order of the Tribunal. As a result, O.A 694/2017 on the file of the Central Administrative Tribunal, Ernakulam Bench will stand dismissed. In the facts and circumstances of the case, we make no order as to costs.

Sd/-

A.M.SHAFFIQUE

JUDGE

Sd/-

GOPINATH P.

JUDGE

acd

O.P.(CAT)No.36/2019

APPENDIX

PETITIONER'S/S EXHIBITS:

¶53

EXHIBIT P1 TRUE COPY OF THE ORIGINAL APPLICATION IN O.A.NO.180/00694/2017, DATED 15.8.2017. EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT IN O.A.NO.180/00694/2017 DATED 11 JUN 2018 FILED BY THE PETITIONERS. ANNEXURE R1 TRUE COPY OF THE CIVILIAN ESTABLISHMENT LIST PART I (NON INDUSTRIAL) NO. 260/92992 DATED 08/08/1992 REGARDING RESIGNATION FROM SERVICE OF THE APPLICANT. ANNEXURE R2 TRUE COPY OF THE RULE 48(B) OF CCS PENSION RULES. ANNEXURE R3 TRUE COPY OF THE RULE 26(1) OF CCS PENSION RULE. ANNEXURE R4 TRUE COPY OF THE JUDGMENT IN OA NO.814/2016 DATED 15/01/2018 OF HON'BLE CAT ERNAKULAM BENCH. EXHIBIT P3 TRUE COPY OF THE REJOINDER IN O.A.NO.180/00694/2017, DATED 29.8.2018. EXHIBIT P4 TRUE COPY OF THE ORDER IN O.A.NO.180/00694/2017, DATED 30.10.2018 ISSUED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. ANNEXURE A3 TRUE COPY OF THE LETTER DATED 16/11/2016 SENT BY THE 3RD RESPONDENT TO THE APPLICANT. ANNEXURE A8 TRUE COPY OF THE LETTER NO. CS/IV/3008/GEN(VOL.X) DATED 22/06/2017 SENT BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT. ANNEXURE A9 TRUE COPY OF THE LETTER NO.DYP/FP/5220/F/M/1126 DATED

¶54

O.P.(CAT)No.36/2019

¶55

¶56

15/07/2017 SENT BY THE 3RD RESPONDENT TO THE APPLICANT.

¶57

ANNEXURE A1 TRUE COPY OF THE APPRENTICESHIP CERTIFICATE ISSUED TO THE APPLICANT. ANNEXURE A2 THE TRUE COPY OF THE REPRESENTATION DATED 02/06/2016 SUBMITTED BY THE APPLICANT TO THE 3RD RESPONDENT. ANNEXURE A4 TRUE COPY OF THE REPRESENTATION DATED 29/11/2016SENT BY THE APPLICANT TO THE 3RD RESPONDENT.

¶58

ANNEXURE A5 TRUE COPY OF THE LETTER DATED 07/11/1996 SENT BY THE 2ND RESPONDENT TO THE CHIEF INSPECTOR OF NAVAL ARMAMENT.

¶59

ANNEXURE A6 TRUE COPY OF THE LETTER DATED 17/01/2017 SENT BY THE APPLICANT TO THE 3RD RESPONDENT.

¶60

ANNEXURE A7 TRUE COPY OF THE LETTER DATED 21/04/2017 SENT BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT.

¶61

RESPONDENT'S/S EXHIBITS:

¶62

EXHIBIT R1(a): TRUE COPY OF THE CIVILIAN

¶63

ESTABLISHMENT LIST PART -I (NON-